These Terms and Conditions ("Agreement") govern and are incorporated by reference into every Insertion Order ("IO") between Optimal Fusion, Inc. ("Optimal Fusion") and PUBLISHER ("Company").
1. Flighting. Company shall make every best effort to flight evenly Optimal Fusion campaign covered by the IO (the "Campaign").
2. Cancellation Policy. Either party may cancel an IO at any time, with 48 hours written notice. Company agrees and acknowledges that Optimal Fusion reserves the right to terminate an IO at any time prior to the Start Time and/or Start Date set forth within the IO ("Early Termination"). In the event of Early Termination, Optimal Fusion shall not owe any payment to Company whatsoever.
3. Incentivized Clicks/Leads. No incentivized clicks or leads will be accepted at any time. If Optimal Fusion determines that leads or clicks have been incentivized, this IO contract will automatically terminate, and Company will forfeit all payments due under the IO. Company agrees and acknowledges that unless otherwise specified within the IO, all clicks delivered must be of USA IP based origin.
4. Billing. Company will not invoice Optimal Fusion for more than the contracted amount. Payment terms range from net 30 to net 60 and are dependent on Affiliate’s traffic score/quality for the previous month’s delivery. Unless otherwise set forth by Optimal Fusion on the IO, Company agrees to hold Optimal Fusion liable for payments solely to the extent proceeds have cleared from the Advertiser to Optimal Fusion for advertising placed in accordance with the IO. For sums owing but not cleared to Optimal Fusion, Company agrees to hold the Advertiser solely liable. Company understands that Advertiser is Optimal Fusion's disclosed principal and Optimal Fusion, as agent, has no obligations for payment under the IO or this Agreement, either joint or several, except as specifically set forth in this paragraph. Optimal Fusion agrees to make every reasonable effort to collect payment from the Advertiser on a timely basis. Optimal Fusion shall not pay for "over delivery" (payment is capped at the contracted amount). Optimal Fusion shall not be charged late fees, interest or other penalties or finance charges.
5. Reporting/Counting. All invoicing related to CPL/CPA buys will be based solely on Optimal Fusion's lead counts in all instances with all CPL/CPA billing discrepancies resolved using Optimal Fusion's lead counts. All invoicing related to CPC and CPM buys will be based on Optimal Fusion's third-party ad server counts. In the event that Company's ad server measurements are higher than those produced by Optimal Fusion's third-party ad server by more than 10% over the invoice period, Optimal Fusion will facilitate a reconciliation effort between Company and the third-party ad server. If the discrepancy cannot be resolved and Optimal Fusion has made a good faith effort to facilitate the reconciliation effort, Optimal Fusion reserves the right to either:
a) Consider the discrepancy an under-delivery whereupon the parties shall make an effort to agree upon the conditions of a make good flight, or
b) Pay Company based on Optimal Fusion's third-party ad server reported data, plus a mutually agreed upon adjustment to delivery.
6. Legal Compliance. In performance of its services, Company shall ensure that all of its activities on behalf of Optimal Fusion shall comply with all applicable laws, rules and regulations.
7. Indemnification. Company will indemnify Optimal Fusion from any, loss, cost, claim or demand which arises out of spam being sent to persons whose addresses appear on lists purchased from Company, including, but not limited to, those individuals who may have opted-out of e-mail solicitations. Company hereby agrees to indemnify Optimal Fusion and hold Optimal Fusion harmless for any claims, suits, loss or damage or other expenses whatsoever arising in connection with the Insertion Order set forth herein or any other alleged action by Company. This shall include Optimal Fusion's reasonable attorneys' fees incurred in the defense of any such action against Company or any third party. In the event Optimal Fusion is named as defendant in any action based on this Agreement or an IO subject to this Agreement, Company agrees to immediately notify Optimal Fusion, and Optimal Fusion shall have the right, but not the obligation to intervene in any such action and to control and direct the defense thereof.
8. Non-Solicitation. During the Term of this Agreement and for a three (3) year period following the termination or expiration of this Agreement, whichever is earlier, Company shall not, either directly or indirectly, either on Company’s own behalf, or on behalf of another person, business, firm, company, or other entity, engage in, assist others in, or take any action to: (1) recruit, solicit, or entice away, or attempt to recruit, solicit, or entice away, any person or entity under contractual business dealings with Optimal Fusion; (2) induce or solicit, or attempt to induce or solicit, any actual or prospective Optimal Fusion customer, or cause any customer to cease doing business, in whole or in part, with Optimal Fusion; or (3) interfere with the relationship between Optimal Fusion and any actual or prospective Optimal Fusion customer, licensee, licensor, or other business relation of Optimal Fusion. Company recognizes that breach of this Section 8 will cause irreparable injury to Optimal Fusion, such that monetary damages would not provide an adequate or complete remedy. Accordingly, in the event of any actual or threatened breach of the provisions of this Section 8, Optimal Fusion, in addition to all other rights, shall be entitled to an injunction restraining Company from breaching this Section 8, and to recover from Company the reasonable attorneys’ fees and costs Optimal Fusion incurs in obtaining such remedies.
9. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, OPTIMAL FUSION EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, COMPANY ACKNOWLEDGES THAT OPTIMAL FUSION IS PROVIDING THE SERVICES DELIVERED HEREUNDER, INCLUDING BUT NOT LIMITED TO, THE OPTIMAL FUSION NETWORK, ON AN “AS IS” BASIS. OPTIMAL FUSION EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. OPTIMAL FUSION SHALL NOT BE LIABLE FOR THE CONTENT OF ANY ADVERTISING, ANY UNAVAILABILITY OR INOPERABILITY OF THE INTERNET, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION.
10. Limitation of Liability. EXCEPT COMPANY’S INDEMNIFICATION OBLIGATIONS IN SECTION 7, NON-SOLICITATION OBLIGATIONS IN SECTION 8, AND CONFIDENTIALITY OBLIGATIONS IN SECTION 11, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT FROM ANY CAUSE OF ACTION WHATSOEVER EXCEED THE AMOUNTS PAID OR OWED TO OPTIMAL FUSION UNDER THIS AGREEMENT.
11. Confidentiality. “Confidential Information” means all information of, from or regarding Optimal Fusion that would be understood by Company, exercising reasonable business judgment, to be proprietary, non-public or confidential, to which Company (including its attorneys, agents and designees) has had access in connection with this Agreement, whether such information is in oral, written, graphic, electronic or machine-readable form, including, without limitation, the financial terms of this Agreement, business practices, marketing materials, business plans, prospects, financial information and material, and all other information related to Optimal Fusion and Optimal Fusion’s business. Company shall keep Optimal Fusion’s Confidential Information confidential, and will not directly or indirectly: (i) divulge, distribute, disclose or make accessible to any other person, firm, partnership, corporation or other entity any Confidential Information; (ii) permit any such third-party to have access to any Confidential Information; or (iii) use the Confidential Information disclosed to it by or on behalf of the other party for any purpose other than those contemplated under this Agreement. Each party agrees that it will only transmit Confidential Information to its directors, officers, employees and representatives who need to know such Confidential Information (each of whom shall agree to abide by the terms of this Section 13), and as only as necessary for the purposes contemplated under this Agreement. Confidential Information shall not include information that: (i) was generally available to the public at the time of disclosure by Optimal Fusion; (ii) was in the possession of, or known by, the Company prior to its receipt from Optimal Fusion; (iii) is independently developed by the Company without the use of the Confidential Information; or (iv) becomes known to Company from a source other than Optimal Fusion, who the receiving party does not know to be under an obligation of confidentiality to the Optimal Fusion. In the event that Company is required in any judicial or governmental proceeding to disclose any of Optimal Fusion’s Confidential Information, Company shall give Optimal Fusion prompt written notice of such request and of the portion of Confidential Information sought to be disclosed as far in advance of the disclosure as is practicable so that Optimal Fusion may seek a protective order.
12. Direct Delivery. Company hereby agrees and acknowledges that unless otherwise agreed in writing, Company shall deliver the Campaign directly or through affiliates or partners. In cases where Company relies on affiliates or partners to deliver inventory, Company shall only use trusted affiliates and partners who have been reviewed and approved in keeping with Company's affiliate or partner screening process. Company shall not use any non-affiliated sub-distributor, sub-contractor, or other third parties to deliver the Campaign or otherwise comply with the IO, unless agreed upon in writing with Optimal Fusion.
13. Passive Conduit. Company agrees and acknowledges that Optimal Fusion is acting only as a passive conduit for the distribution and publishing of the Campaign, and shall not be held responsible for any liability, loss, cost, claim or expense arising out of or relating to the Campaign. Optimal Fusion has no obligation to Company and undertakes no responsibility to review any or all of the Campaign.
14. Severability. If any provision of this Agreement or an IO subject to this Agreement is held to be unenforceable for any reason, it shall be modified rather than voided, if possible, in order to achieve to the extent possible the intent of the parties to this Agreement and/or the IO. In any such event, all other provisions of this Agreement and the IO shall be deemed valid and enforceable to the fullest extent possible.
15. Incorporation of Terms. The terms and conditions of this Agreement shall be incorporated in and constitute a part of each IO entered into by and between Optimal Fusion and Company.
16. Optimal Fusion Terms Supersede. If any conflict shall arise between this Agreement, and any accompanying Insertion Order(s), this Agreement shall supersede.
17. No Online Terms. Without limiting the foregoing, no online or click-through terms, conditions, policies or documents offered by Company shall be deemed to have modified this Agreement, notwithstanding the fact that Optimal Fusion may have affirmatively accepted such Online Terms & Conditions as a condition of accessing an online service.
18. E-mail Campaigns. The following are only applicable to the extent this Agreement or an IO subject to this Agreement applies to e-mail campaigns:
a) All e-mail solicitations must originate from "opt-in" or "negative opt-in" sources only, and require a viable "opt-out" option through a link for consumers wishing not to receive further advertisements, solicitations, or communications from Company. (A negative opt-in refers to user acceptance of a clearly visible pre-checked opt-in choice). Company will remove any e-mail record from mailing list for which Company cannot identify the date and website from which the user opted-in or accepted a negative opt-in to receive e-mail offers. In the instance of any request for information due to an abuse or spam report, Company will send all requested information or data to Optimal Fusion within 48 hours of written request.
b) If specified in the IO, Company will send e-mails containing advertisements to end users to which Company has obtained rights (either directly or through a third party list provider) to provide information about products or services from companies represented by Optimal Fusion. E-mails shall be sent on the times and dates chosen by Optimal Fusion. Company may not make changes to the content of the emails or subject lines without express written consent by Optimal Fusion.
c) Company shall only be paid for e-mails actually received within the time parameters set forth in the IO, with no payment for e-mails "mailed" or "sent" or which are otherwise outside of the time and/or date parameters of the IO.
d) In consideration of the mutual agreements set forth below, the parties agree as follows:
i) Company represents and warrants that:
(1) All Optimal Fusion electronic mail messages that Company initiates, obtains or sends shall comply with the CAN-SPAM Act of 2003, as amended (the "Act"). Moreover, all electronic mail messages shall:
(a) Contain header information that is completely accurate.
(b) Not contain or include a falsified sender domain or a non-responsive IP addresses.
(c) Utilize a "from" line that is not fraudulent or misleading and accurately identifies Company (or Advertiser if requested).
(d) Include a functioning return/reply email address for unsubscribe purposes and an unsubscribe link that works for at least thirty (30) days from the date the electronic mail message is transmitted.
(e) Be identified as an advertisement or solicitation.
(f) Contain Company's valid, physical postal address, an accurately registered post office box or private mailbox established under US Postal Service regulations to satisfy the Act's requirements.
(2) Company shall not redirect campaign links to another offer once lead caps are met. Optimal Fusion must be notified to get approval to extend the lead cap of the offer or Optimal Fusion must be notified that the offer will expire.
(3) Company does not, and will not, engage in deceptive conduct, including, without limitation, e-mail address harvesting, falsifying routing or header information, dictionary attacks or any other acts that may be considered deceptive.
(4) Company does not and will not buy, exchange, lease, release or sell the electronic mail addresses of those individuals that have submitted an unsubscribe request to Company and have not subsequently provided an affirmative consent.
(5) Company agrees not to revise, alter or modify the creative provided by Optimal Fusion without first receiving Optimal Fusion written consent for such changes, provided, however, that from time to time, Company may submit to Optimal Fusion in the test electronic mail message that must be approved in writing by Optimal Fusion prior to transmission, a revised subject line. An Optimal Fusion written approval of such test electronic mail message shall indicate that the content, including, but not limited to the goods and services being promoted, and the subject line, are not fraudulent, deceptive or misleading.
(6) Company shall process all unsubscribe requests in connection with an Electronic Mail Message within five (5) business days of its receipt of such request, and shall maintain electronic or tangible records evidencing the date and time of removal of such Electronic Mail Address from its list/database, and shall provide such records to Optimal Fusion upon request.
(7) Company agrees to suppress a "do not mail" file containing Electronic Mail Addresses and/or domains in connection with any Electronic Mail Message provided by Optimal Fusion.
(8) Company does not, and will not, engage in any other conduct prohibited by the Act.
(9) Upon written notice from Optimal Fusion of a violation of the Act, Company agrees to immediately stop transmission of any Optimal Fusion electronic mail message.
ii) Optimal Fusion represents and warrants that:
(1) All electronic mail messages provided by Optimal Fusion, including, but not limited to the approved content, the goods and services promoted, and the approved subject line, shall not be fraudulent, misleading or deceptive.
(2) All Electronic Mail Messages provided by Optimal Fusion shall include Optimal Fusion's valid, physical postal address, an accurately registered post office box or private mailbox established under US Postal Service regulations to satisfy the Act's requirements.
(3) All electronic mail messages provided by Optimal Fusion shall include a functioning Optimal Fusion unsubscribe link, or conversely, Optimal Fusion shall provide Company, and all other advertisers with whom Optimal Fusion is promoting its electronic mail messages, with a functioning, Optimal Fusion unsubscribe link to implement in the Optimal Fusion electronic mail messages, that works for at least thirty (30) days from the date the electronic mail messages is transmitted.
(4) Optimal Fusion does not, and will not, engage in any other conduct prohibited by the Act.
iii) The terms of these representations and warranties shall supersede, govern and control in case of conflict with any other written or oral agreement between Optimal Fusion and Company with respect to the subject matter hereof.
19. CASL Compliance. Where (i) a commercial electronic message is sent to an electronic address, or (ii) a program is install on someone else's computer or mobile device, Company represents and warrants that any and all of its electronic marketing activities on behalf of Optimal Fusion will comply with the Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (S.C. 2010, c. 23)) ("CASL"), and its implementing regulations adopted by the Canadian Radio Television and Telecommunications Commission ("CRTC") (CRTC 2012-183) and Industry Canada (81000-2-175 (SOR/DORS)), as amended from time-to-time (collectively, the "Canadian Anti-Spam Law"). Publisher shall be responsible for all sub-affiliates, publishers, and third parties relating to such compliance. Company agrees to indemnify and hold Optimal Fusion and its subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of, or in connection with, any acts or omissions of the Publisher that would constitute a violation or breach of its representations and warranties, specifically, claims arising under provisions of the Canadian Anti-Spam Law.
20. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of law rules thereof. Any dispute arising out of or related to this Agreement, shall be brought in federal or state courts in Los Angeles, California, and the Parties agree to the exclusive venue and jurisdiction thereof for such purposes and waive any objection thereto. The prevailing party in any action or legal proceeding arising from this Agreement shall be entitled to an award of all reasonable attorneys’ fees and costs.
21. Contract Rights. The failure of either party to require or insist on strict or full performance of any provision of this Agreement, or to enforce its rights in the event of a breach hereof, shall not constitute a waiver of any other or succeeding breach or of any right to insist on strict and full performance in the future, and shall not limit or affect the enforceability of either the provision involved or any other provision of this Agreement. The rights and obligations contained herein shall inure to the benefit of and be binding upon the successors and assigns of the parties hereto.
22. Entire Agreement. This Agreement sets forth the entire agreement between the parties and contains all the agreements, understandings, representations, conditions, warranties and comments made between them. All prior negotiations and agreements are merged into this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same Agreement. This Agreement may be executed and delivered by electronic facsimile transmission with the same force and effect as if it were executed and delivered by the parties simultaneously in the presence of one another, and signatures on a facsimile copy hereof shall be deemed authorized original signatures.